The meaning and criteria for determination of “a third party who has an interest in registration” under Article 52 subparag. 5 of the proviso to Article 52 of the Registration of Real Estate Act / Whether a lawsuit claiming an expression of consent to the registration of change or correction of right is legitimate (negative)

The proviso of Article 52 (5) of the Registration of Real Estate Act provides, “No registration of change or correction of a right shall be made in an additional registration where consent is obtained from a third party interested in the registration.” In this case, the third party interested in the registration refers to the registered titleholder who is likely to incur loss by permitting the registration of change or correction of a right to the existing registration, and the risk of incurring loss shall be determined by the form of registration and shall not be considered.

Therefore, it is apparent that a person who is not a registered titleholder is not a third party with an interest in the registration of change or correction of a right, and it is not necessary to obtain consent from a person who is not a registered titleholder in order to make registration of change or correction of a right as an additional registration. Therefore, a lawsuit claiming consent of change or correction of a right against a person who is not a registered titleholder is illegal against a person who is not a registered titleholder.

Article 52 of the Registration of Real Estate Act

Supreme Court Decision 98Ma40 Decided April 9, 1998 (Gong1998Sang, 1492) Supreme Court Decision 2003Da35567 Decided February 27, 2004 (Gong2004Sang, 541) Supreme Court Decision 201Ma1248 Decided September 14, 201, Supreme Court Decision 2013Da18011 Decided July 11, 2013

Plaintiff (Attorney Lee Jae-ho et al., Counsel for the plaintiff-appellant)

Defendant (Law Firm Digital, Attorney Lee In-bok, Counsel for defendant-appellant)

Seoul High Court Decision 2014Na20365 decided November 5, 2014

The judgment of the court of first instance is reversed. The part concerning the claim for consent against the defendant among the judgment of the court of first instance is revoked, and this part of the lawsuit is dismissed. 40% of the total costs of the lawsuit shall be borne by the plaintiff,

Before determining the grounds of appeal, we examine it ex officio.

1. Article 52 (proviso) 5 of the Registration of Real Estate Act provides, “No registration of change or correction of a right shall be made in addition to a supplementary registration where consent is obtained from a third party interested in the registration.” In this context, the term “third party interested in the registration” refers to a registered titleholder who is likely to incur damage by permitting the registration of change or correction of a right to the existing registration, and the risk of causing such damage shall be determined in the form of registration and considered whether it is likely to incur actual damage (see, e.g., Supreme Court Decisions 98Ma40, Apr. 9, 1998; 201Ma1248, Sept. 14, 2011).

Therefore, it is apparent that a person, other than a registered titleholder, is not a third party having an interest in the registration of change of right or registration of correction, and it is not necessary to obtain consent from a person, other than a registered titleholder, in order to make registration of change of right or registration of correction in additional registration. Thus, a lawsuit claiming consent of change of right or registration of correction against a person, other than a registered titleholder, is an unlawful lawsuit against a person who is not a registered titleholder (see, e.g., Supreme Court Decisions 2003Da35567, Feb. 27, 2004; 2013Da18011, Jul. 11, 2013).

2. The Plaintiff filed against the Defendant a claim against the Defendant for consent to the registration of change of the right to collateral security, which was completed on June 23, 2009 on each land listed in the attached list of the lower judgment, with respect to the establishment of a neighboring mortgage, which was completed on June 23, 2009 by receipt of No. 95239, from the non-party, to the Defendant. According to the reasoning of the lower judgment and the evidence duly admitted by the lower court, it can be seen that the Defendant is not a registered titleholder with respect to each land listed in the attached list of the lower judgment, and it cannot be deemed as a new registered titleholder with respect

Nevertheless, the lower court deemed this part of the lawsuit lawful, and further accepted the Plaintiff’s claim. In so doing, the lower court erred by misapprehending the legal doctrine on the standing of a party to a lawsuit claiming a declaration of consent, thereby adversely affecting the conclusion of

3. Therefore, without examining the grounds of appeal, the judgment of the court below is reversed without further proceeding to decide on the grounds of appeal, and this case is sufficient to be tried directly by the court. As such, among the judgment of the court of first instance, the part concerning the claim for consent against the defendant among the judgment of the court of first instance regarding the claim for consent shall be revoked, and this part of the lawsuit shall be dismissed, and 40% of the total litigation costs shall be borne by the plaintiff and the remainder shall be borne by

Justices Park Poe-young (Presiding Justice)